Q: How should I deal with employee activism, safety and support amid difficult cultural issues?
A: Recent social and political controversies — such as rulings from the Supreme Court of the United States, international conflicts and mass shootings — are likely to cause more employees to voice their opinions and frustrations both inside and outside the workplace. Local protests, marches or unrest may escalate, making it unsafe for employees to commute into work. Anticipating volatile situations and knowing appropriate ways to respond allows employers to be proactive and support their employees during difficult times.
Employee speech and the First Amendment. Many employees wrongly believe they have a constitutional right to free speech, under all circumstances. However, First Amendment protection is somewhat limited. The First Amendment applies to government action and public-sector employers but does not cover private employers. So, the speech of private-sector employees is not necessarily protected by the First Amendment.
The reality is, private employers have discretion to discharge or discipline employees for certain types of speech, such as inflammatory or hate speech, even if they are off duty. Employers must take action to ensure employee disagreements do not turn into unprofessional, disrespectful disputes, harassment, threats or violent acts. Private employers may restrict speech and other forms of expression that “cross the line,” violate codes of conduct and policies prohibiting harassment and/or discrimination, or threaten the safety and health of other employees, and if necessary, may take disciplinary action and/or termination.
Physical safety. Beyond issues of employee speech and expression, local protests or general unrest may disrupt the physical workplace. For example, some employees may commute through or work at locations where a protest or unrest is happening, making their commute impracticable, intimidating or even unsafe. Employers — especially ones that may be targets of protests or have multiple worksites in large cities — may want to consider designating an individual to monitor the general safety of worksites, including employee ingress and egress.
An emergency response plan is an employer’s best defense during times of uncertainty. Employers can proactively outline and train employees around situations when they may be asked to stay home, be subject to flexible scheduling arrangements, need to evacuate, or how leadership will communicate with them about evolving developments. This plan also may cover whether the employer needs to secure the worksite, how they will handle any related wage and hour issues, and whether paid leave will be available. Creating an emergency response plan requires coordination between executive leadership and their legal and human resources departments. Together they can identify various “what if” scenarios and come up with action plans, including who will be involved in the decision-making process in each scenario. The plan also should let employees know to which leaders they can report incidents, complaints or concerns.
Despite best laid plans, reactions to political, social and judicial events are expected and may occasionally be so strong they interfere with an employee’s ability to work. During times of unrest, employers may receive increased requests for leave, assistance from mental health professionals, or employee assistance programs (EAPs). Employers can support their staff by approving requests for sick time, paid time off (PTO), or even family and medical leave requests in the wake of an emergency.
Takeaways. Times of increased employee activism or social unrest don’t have to be moments of panic for employers. There are many practical steps an employer may take to be prepared, including creating a proactive emergency response plan. Continuous clear communication with employees is the key to ensuring they understand their obligation to conduct themselves professionally and know of all available resources if and when they need support.
This column is provided by Ogletree Deakins, Atlanta, as part of a partnership with the American Rental Association (ARA) for ARA’s Human Resources Assistance Program. ARA members can receive a single sign on from the ARA webpage to a microsite specific to ARA on the Ogletree Deakins platform; get access to two 30-minute calls with an HR professional per year; access to an FAQ section as well as to Ogletree Deakins’ library of webinars; and access to Ogletree Deakins’ ARA-specific webinars. To learn more, visit ARArental.org/Manage-Business/HR.